1. Healthcare

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Title 204—JUDICIAL
SYSTEM GENERAL
PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CHS. 87, 89, 91, 93 AND 95 ]
Amendments to Rules of Organization and Procedure of the Disciplinary Board of the Supreme
Court of Pennsylvania; Order No. 76
The Rules of Organization and Procedure of the Board
have been drafted to restate in full the substance of the
Pennsylvania Rules of Disciplinary Enforcement. By Order dated December 30, 2014, effective February 28, 2015,
the Supreme Court of Pennsylvania amended Pa.R.D.E.
208, 213, 215, 217, 218, 219, and 221, respectively. By
this Order, the Board is making conforming changes to its
Rules to reflect the adoption of those amendments.
The Disciplinary Board of the Supreme Court of Pennsylvania finds that:
(1) To the extent that 42 Pa.C.S. § 1702 (relating to
rule making procedures) and Article II of the act of July
31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, would otherwise require notice of
proposed rulemaking with respect to the amendments
adopted hereby, those proposed rulemaking procedures
are inapplicable because the amendments adopted hereby
relate to agency procedure and are perfunctory in nature.
(2) The amendments to the Rules of Organization and
Procedure of the Board adopted hereby are not inconsistent with the Pennsylvania Rules of Disciplinary Enforcement and are necessary and appropriate for the administration of the affairs of the Board.
The Board, acting pursuant to Pa.R.D.E. 205(c)(12),
orders:
(1) Title 204 of the Pennsylvania Code is hereby
amended as set forth in Annex A hereto.
(2) The Secretary of the Board shall duly certify this
Order, and deposit the same with the Administrative
Office of Pennsylvania Courts as required by Pa.R.J.A.
103(c).
(3) The amendments adopted hereby shall take effect
30 days after publication in the Pennsylvania Bulletin.
(4) This Order shall take effect on March 2, 2015 and
shall govern all matters commenced on or after that date
and, insofar as just and practicable, matters then pending.
(5) The amendments to Board Rules 91.93 and 91.95
shall apply to persons who are formerly admitted attorneys on the effective date of this Order and to persons
becoming formerly admitted attorneys on or after the
effective date of this Order.
(6) The amendments to Board Rule 93.142 relating to
filing of annual form by attorneys shall be applicable
beginning with the 2015-2016 assessment year.
By The Disciplinary Board of the
Supreme Court of Pennsylvania
ELAINE M. BIXLER,
Secretary
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL
PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart C. DISCIPLINARY BOARD OF THE
SUPREME COURT OF PENNSYLVANIA
CHAPTER 87. INVESTIGATIONS AND INFORMAL
PROCEEDINGS
Subchapter A. PRELIMINARY PROVISIONS
COMPLAINTS
§ 87.7. Notification to respondent-attorney of complaint
and duty to respond; duty to produce Pa.R.P.C.
1.15’s required records and effect of failure to
produce.
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(d) Effect of failure to respond. Enforcement Rule
203(b)(7) provides that failure by a respondent-attorney
without good cause to respond to a request (Form DB-7)
or supplemental request (Form DB-7A) by Disciplinary
Counsel for a statement of the respondent-attorney’s
position shall be grounds for discipline. Failure to respond
may also be a violation of Rule of Professional Conduct
8.1(b).
Official Note: [ If ] Except as provided in subsection (e) of this section, if Disciplinary Counsel’s request or supplemental request for a statement of position
contains a separate request for production of records or
documents (other than required records under
Pa.R.P.C. 1.15(c) and § 91.177 of Chapter 91
Subchapter H of these Rules), the respondentattorney’s nonproduction shall not be a basis for discipline under Enforcement Rule 203(b)(7) but may constitute evidence of non-cooperation with Disciplinary
Counsel’s inquiry. Disciplinary Counsel may obtain a
subpoena to compel production of the records and documents requested in the Form DB-7 or DB-7A, and the
respondent-attorney’s wilful failure to comply with the
subpoena would serve as a basis for discipline under RPC
8.4(d) and various provisions of the Enforcement Rules.
(e) Duty to produce Pa.R.P.C. 1.15’s required records and time for production. Notwithstanding any
other provision in this section, if Disciplinary
Counsel requests records required to be maintained
under Pa.R.P.C. 1.15(c), Enforcement Rule 221(e),
and § 91.177(a) (all of which relate to required
records) in a Form DB-7 (Request for Statement of
Respondent’s Position) or Form DB-7A (Supplemental Request for Statement of Respondent’s Position), the respondent-attorney shall provide the
records to Disciplinary Counsel within ten business
days of receipt of the Form DB-7 or Form DB-7A, as
the case may be, whether or not the respondentattorney files the statement of position required to
be filed under subsection (b) of this section. The
Form DB-7 or Form DB-7A will be considered received for purposes of this subsection if: 1) personal
service of the Form DB-7 or Form DB-7A on the
respondent-attorney is accomplished; 2) a copy of
the Form DB-7 or Form DB-7A is delivered to an
employee, agent or other responsible person at the
office of the respondent-attorney as determined by
the address furnished by the respondent-attorney
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545
in the last registration statement filed by the
respondent-attorney pursuant to Enforcement Rule
219(d) (relating to annual registration of attorneys);
or 3) mailed by certified mail with return receipt
requested to one or more of the addresses furnished by the respondent-attorney in the last registration statement and delivery is accepted as
shown by electronic or paper return receipt containing the name or signature of the respondentattorney or other person who accepted delivery.
The time in which to produce the required records
(ten business days) is separate from the time fixed
for the filing of the respondent-attorney’s statement
of position under paragraph (b)(2).
upon delivery of the resignation statement to Disciplinary Counsel or the Secretary of the Board.
(f) Effect of failure to produce Pa.R.P.C. 1.15’s
required records. Enforcement Rule 221(g)(3) and
§ 91.179 of Chapter 91 Subchapter H of these Rules
provide that failure to produce Pa.R.P.C. 1.15 records in response to a request or demand for such
records may result in the initiation of proceedings
pursuant to Enforcement Rule 208(f)(1) or (f)(5)
(relating to emergency temporary suspension orders and related relief), the latter of which specifically permits Disciplinary Counsel to commence a
proceeding for the temporary suspension of a
respondent-attorney who fails to maintain or produce Pa.R.P.C. 1.15(c) records after receipt of a
request or demand authorized by subdivision (g) of
Enforcement Rule 221 or any provision of these
Rules.
(9) The attorney is aware that the waiting period
for eligibility to apply for reinstatement to the
practice of law under Enforcement Rule 218(b)
shall not begin until the attorney files the verified
statement of compliance required by Enforcement
Rule 217(e)(1), and if the order of disbarment contains a provision that makes the disbarment retroactive to an earlier date, then the waiting period
will be deemed to have begun on that earlier date.
Subchapter D. ABATEMENT OF INVESTIGATION
§ 87.73. Resignations by attorneys under disciplinary investigation.
(a) Voluntary resignation. Enforcement Rule 215(a) provides that an attorney who is the subject of an investigation into allegations of misconduct by the attorney may
submit a resignation, but only by delivering to Disciplinary Counsel or the Secretary of the Board a verified
statement stating that the attorney desires to resign and
that:
(1) The resignation is freely and voluntarily rendered;
the attorney is not being subjected to coercion or duress;
the attorney is fully aware of the implications of submitting the resignation; and whether or not the attorney has
consulted or followed the advice of counsel in connection
with the decision to resign.
(2) The attorney is aware that there is a presently
pending investigation into allegations that the attorney
has been guilty of misconduct the nature of which the
verified statement shall specifically set forth.
(3) The attorney acknowledges that the material facts
upon which the complaint is predicated are true.
(4) The resignation is being submitted because the
attorney knows that if charges were predicated upon the
misconduct under investigation the attorney could not
successfully defend against them.
(5) The attorney is fully aware that the submission of the resignation statement is irrevocable and
that the attorney can only apply for reinstatement
to the practice of law pursuant to the provisions of
Enforcement Rule 218(b) and (c).
(6) The attorney is aware that pursuant to subsection (c) of Enforcement Rule 215, the fact that
the attorney has tendered his or her resignation
shall become a matter of public record immediately
(7) Upon entry of the order disbarring the attorney on consent, the attorney will promptly comply
with the notice, withdrawal, resignation, trust accounting, and cease-and-desist provisions of subdivisions (a), (b), (c) and (d) of Enforcement Rule 217.
(8) After the entry of the order disbarring the
attorney on consent, the attorney will file a verified
statement of compliance as required by subdivision
(e)(1) of Enforcement Rule 217; and
(b) Representation by counsel. The verified statement
under subsection (a) shall indicate whether or not the
attorney has consulted or followed the advice of counsel
(naming such counsel, if any) in connection with the
decision to resign.
(c) Order of disbarment. Enforcement Rule 215(b) provides that receipt of the required statement, the Secretary of the Board shall file it with the Supreme Court and
the Court shall enter an order disbarring the attorney on
consent.
(d) Confidentiality of resignation statement. Enforcement Rule 215(c) provides that the fact that the attorney has submitted a resignation statement to Disciplinary Counsel or the Secretary of the Board for
filing with the Supreme Court shall become a
matter of public record immediately upon delivery
of the resignation statement to Disciplinary Counsel or the Secretary of the Board; the order disbarring
the attorney on consent shall be a matter of public record;
and that, if the statement required by subsection (a) is
submitted before the filing and service of a petition for
discipline and the filing of an answer or the time to file
an answer has expired, the statement shall not be
publicly disclosed or made available for use in any
proceeding other than a subsequent reinstatement proceeding except:
(1) upon order by the Supreme Court[ . ],
(2) pursuant to an express written waiver by the
attorney,
(3) upon a request of another jurisdiction for purposes
of a reciprocal disciplinary proceeding,
(4) upon a request by the Pennsylvania Client Security
Fund Board pursuant to Enforcement Rule 521(a) (relating to cooperation with Disciplinary Board), or
(5) when the resignation is based on an order of
temporary suspension from the practice of law entered by
the Court either pursuant to Enforcement Rule 208(f)(1)
(relating to emergency temporary suspension orders and
related relief) or pursuant to Enforcement Rule 214
(relating to attorneys convicted of crimes).
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CHAPTER 89. FORMAL PROCEEDINGS
CHAPTER 91. MISCELLANEOUS MATTERS
Subchapter F. REINSTATEMENT AND
RESUMPTION OF PRACTICE
Subchapter A. SERVICE, SUBPOENAS,
DEPOSITIONS AND RELATED MATTERS
IN GENERAL
REINSTATEMENT OF FORMERLY ADMITTED
ATTORNEYS
§ 89.272. Waiting period.
(a) General rule relating to disbarment. Enforcement
Rule 218(b) provides that a person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the
disbarment, except that a person who has been disbarred
pursuant to § 91.51 (relating to reciprocal discipline and
disability) may apply for reinstatement at any earlier
date on which reinstatement may be sought in the
jurisdiction of initial discipline. Enforcement Rule
217(e)(3) and its Note, and Enforcement Rule 218(b)
provide that after the entry of an order of disbarment, which order has been entered on or after
February 28, 2015, the waiting period for eligibility
to apply for reinstatement to the practice of law
shall not begin until the formerly admitted attorney files the verified statement required by § 91.96
(relating to proof of compliance); and that if the
order of disbarment contains a provision that
makes the disbarment retroactive to an earlier
date, the waiting period will be deemed to have
begun on that earlier date.
(b) General rule relating to suspension for a period exceeding one year. Enforcement Rule 217(e)(3)
and its Note provide that after the entry of an
order of suspension for a period exceeding one
year, which order has been entered on or after
February 28, 2015, the waiting period for eligibility
to apply for reinstatement to the practice of law
shall not begin until the formerly admitted attorney files the verified statement required by § 91.96
(relating to proof of compliance); and that if the
order of suspension contains a provision that
makes the suspension retroactive to an earlier date,
the waiting period will be deemed to have begun on
that earlier date.
[ (b) ] (c) Premature petitions. Unless otherwise provided in an order of suspension or disbarment, the Board
will not entertain a petition for reinstatement filed prior
to the expiration of the period set forth in subsection (a),
or more than nine months prior to the expiration of the
term of suspension, as the case may be. The Board will
also not entertain a petition for reinstatement filed before
the formerly admitted attorney has paid in full any costs
taxed under § 89.209 (relating to expenses of formal
proceedings) or under § 89.278 (relating to expenses of
reinstatement proceedings) with respect to any previous
reinstatement proceeding and has made any required
restitution to the Lawyers Fund for Client Security under
Enforcement Rule 531 (relating to restitution a condition
for reinstatement).
[ (c) ] (d) Second or subsequent petitions. Where a
petition for reinstatement has been finally denied, the
Board, unless otherwise ordered by the Supreme Court in
a specific case, will not entertain a second or subsequent
petition for reinstatement until after the expiration of at
least one year after the immediately preceding petition
has been finally denied.
§ 91.3. Determination of validity of subpoena.
(a) In [ General ] general. Enforcement Rule 213(d)
provides that any attack on the validity of a subpoena
issued under these rules shall be handled as follows:
(1) A challenge to a subpoena authorized by
§ 91.2(a)(1) (relating to subpoenas and investigations)[ ; ]
shall be heard and determined by the hearing committee
or special master before whom the subpoena is returnable
in accordance with the procedure established by
the Board in subsection (b).
(2) A challenge to a subpoena authorized by
§ 91.2(a)(2) shall be heard and determined by a member
of a hearing committee in the disciplinary district in
which the subpoena is returnable in accordance with
the procedure established by the Board in subsection (b).
(3) A determination under paragraph (1) or (2) may
[ not ] be appealed to a lawyer-Member of the Board[ ,
but may be appealed to the Supreme Court under
§ 91.4 (relating to appeal of challenges to subpoenas) ] within ten days after service pursuant to
§§ 89.21 and 89.24 of the determination on the party
bringing the appeal by filing a petition with the
Board setting forth in detail the grounds for challenging the determination. The appealing party
shall serve a copy of the petition on the nonappealing party by mail on the date that the appealing party files the appeal, and the nonappealing party shall have five business days after
delivery to file a response. No attack on the validity
of a subpoena will be considered by the Designated
lawyer-Member of the Board unless previously
raised before the hearing committee. The Board
Member shall decide the appeal within five business days of the filing of the non-appealing party’s
response, if any. There shall be no right of appeal to
the Supreme Court. Any request for review shall
not serve to stay any hearing or proceeding before
the hearing committee or the Board unless the
Court enters an order staying the proceedings.
(b) Procedure.
(1) A motion attacking a subpoena must be filed with
the Office of the Secretary within ten days after service of
the subpoena. A copy of the motion must be served on the
other party to the investigation or proceeding. If a
motion attacking a subpoena is filed by a third
party to the investigation or proceeding who has
been served with a subpoena, a copy of the motion
must be served on Disciplinary Counsel and the
respondent-attorney.
(2) Any answer to the motion must be filed with the
Office of the Secretary within five business days after
[ service ] receipt of the motion [ on ] served by the
other party under paragraph (1).
(3) The Office of the Secretary must transmit the
motion and any answer to the person designated in
[ subsection ] paragraphs (a)(1) or (2) to hear the
motion, who must schedule a hearing on the motion
within ten business days after the date by which an
answer must be filed. A report with findings of fact and
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conclusions of law must be filed with the Office of the
Secretary within ten business days after the conclusion
of the hearing.
§ 91.4. Appeal of challenges to subpoenas.
Enforcement Rule 213(g) provides that:
(1) Either Disciplinary Counsel or a respondentattorney may petition the Supreme Court to enforce a
subpoena [ or to review a determination under
§ 91.3 (relating to determination of validity of subpoena) on the validity of a subpoena, and no attack
on the validity of a subpoena will be considered by
the Court unless previously raised as provided in
§ 91.3 ] that was not the subject of a challenge
pursuant to paragraphs (a)(1) and (2) of § 91.3
(relating to validity of subpoena) or that was the
subject of a challenge and has not been finally
quashed by either the hearing committee or the
Board Member designated to hear the appeal, provided that the party filing the petition to enforce
attaches a certification in good faith that: a) the
party exhausted reasonable efforts to secure the
presence of the witness or the evidence within the
witness’s custody or control, b) the testimony, records or other physical evidence of the witness will
not be cumulative of other evidence available to the
party, and c) the absence of the witness will substantially handicap the party from prosecuting or
defending the charges, or from establishing a
weighty aggravating or mitigating factor. If the
object of a petition to enforce is a subpoena directed to the respondent-attorney for, in whole or
in part, production pursuant to Enforcement Rule
221(g)(2) of required records under RPC 1.15(c) and
Enforcement Rule 221(e), no certification will be
required for the subpoena or portion thereof that
pertains to the required records. See also § 91.151(e)
(relating to contempt of the Board).
Official Note: The reference to § 91.151(e) is intended
to make clear that, where the person who is resisting
complying with a subpoena is the respondent-attorney,
the provisions of this rule are cumulative of those in
§ 91.151(e).
(2) Upon receipt of a petition for enforcement of a
subpoena, the Court shall issue a rule to show cause upon
the person to whom the subpoena is directed, returnable
within ten days, why the person should not be held in
contempt. If the subpoena is directed to a
respondent-attorney for production of required records and the respondent-attorney has not produced the records, the Court shall issue upon the
respondent-attorney a rule to show cause why the
respondent-attorney should not be placed on temporary suspension for failing to produce the records. If the period for response has passed without a
response having been filed, or after consideration of any
response, the Court shall issue an appropriate order.
[ (3) A petition for review of a determination
made under § 91.3 must set forth in detail the
grounds for challenging the determination. Upon
timely receipt of a petition for review, the Court
shall issue a rule to show cause upon the party to
the proceeding who is not challenging the determination, returnable within ten days, why the determination should not be reversed. If the period for
response has passed without a response having
been filed, or after consideration of any response,
the Court shall issue an appropriate order. ]
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Subchapter E. FORMERLY ADMITTED
ATTORNEYS
§ 91.91. Notification of clients in nonlitigation matters.
(a) General rule. Enforcement Rule 217(a) provides
that a formerly admitted attorney shall promptly notify
[ by registered or certified mail, return receipt
requested ], or cause to be promptly notified, all
clients being represented in pending matters, other than
litigation or administrative proceedings, of the disbarment, suspension, administrative suspension or transfer
to inactive status and the consequent inability of the
formerly admitted attorney to act as an attorney after the
effective date of the disbarment, suspension, administrative suspension or transfer to inactive status and shall
advise [ such ] said clients to seek legal advice elsewhere. Such notices shall be in substantially the language
of Form DB-23 (Nonlitigation Notice of Disbarment,
Suspension, Administrative Suspension or Transfer to
Inactive Status). The notice required by this subsection (a) may be delivered by the most efficient
method possible as long as the chosen method is
successful and provides proof of receipt.
Official Note: Notice may be accomplished, for
example, by delivery in person with the lawyer
securing a signed receipt, electronic mailing with
some form of acknowledgement from the client
other than a ‘‘read receipt,’’ and mailing by registered or certified mail return receipt requested.
(b) Copies of notices and proofs of receipt. [ The
formerly admitted attorney shall file photocopies of
such notices and returned receipts in the Office of
the Secretary. ] At the time of the filing of the
verified statement of compliance required by
§ 91.96 of this Subchapter E, the formerly admitted
attorney shall file copies of the notices required by
this section and proofs of receipt with the Secretary of the Board and shall serve a conforming copy
on the Office of Disciplinary Counsel.
§ 91.92. Notification of clients in litigation matters.
(a) General rule. Enforcement Rule 217(b) provides
that a formerly admitted attorney shall promptly notify,
or cause to be promptly notified, [ by registered or
certified mail, return receipt requested, ] all clients
who are involved in pending litigation or administrative
proceedings, and the attorney or attorneys for each
adverse party in such matter or proceeding, of the
disbarment, suspension, administrative suspension or
transfer to inactive status and consequent inability of the
formerly admitted attorney to act as an attorney after the
effective date of the disbarment, suspension, administrative suspension or transfer to inactive status. Such rule
further provides that the notice to be given to the client
shall advise the prompt substitution of another attorney
or attorneys in place of the formerly admitted attorney;
that in the event the client does not obtain substitute
counsel before the effective date of the disbarment,
suspension, administrative suspension or transfer to inactive status, it shall be the responsibility of the formerly
admitted attorney to move in the court or agency in
which the proceeding is pending for leave to withdraw;
and that the notice to be given to the attorney or
attorneys for an adverse party shall state the place of
residence of the client of the formerly admitted attorney.
Such notices shall be in substantially the language of
Form DB-24 (Litigation Notice of Disbarment, Suspen-
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sion, Administrative Suspension or Transfer to Inactive
Status). The notice required by this subsection (b)
may be delivered by the most efficient method
possible as long as the chosen method is successful
and provides proof of receipt. See Note after subsection (a) of § 91.91 (relating to notification of
clients in nonlitigation matters).
(b) Copies of notices and proofs of receipt. [ The
formerly admitted attorney shall file photocopies of
such notices and returned receipts in the Office of
the Secretary. ] At the time of the filing of the
verified statement of compliance required by
§ 91.96 of this Subchapter E, the formerly admitted
attorney shall file copies of the notices required by
this section and proofs of receipt with the Secretary of the Board and shall serve a conforming copy
on the Office of Disciplinary Counsel.
§ 91.93. Notification of other persons.
(a) General rule. Enforcement Rule 217(c) provides that
a formerly admitted attorney shall promptly notify, or
cause to be promptly notified, of the disbarment, suspension, administrative suspension or transfer to inactive
status[ , by registered or certified mail, return receipt requested ]:
(1) all persons or their agents or guardians, including
but not limited to wards, heirs and beneficiaries, to
whom a fiduciary duty is or may be owed at any time
after the disbarment, suspension, administrative suspension or transfer to inactive status[ , and ];
(2) all other persons with whom the formerly admitted
attorney may at any time expect to have professional
contacts under circumstances where there is a reasonable
probability that they may infer that he or she continues
as an attorney in good standing[ . ]; and
(3) any other tribunal, court, agency or jurisdiction in which the attorney is admitted to practice.
(b) Method of delivery. Enforcement Rule 217(c)
further provides that the notices required by subsection (a) may be delivered by the most efficient
method possible as long as the chosen method is
successful and provides proof of receipt. See Note
after § 91.91(a) of this Subchapter E.
(c) Copies of notices and proofs of receipt. Enforcement Rule 217(c) further provides that at the
time of the filing of the verified statement of
compliance required by § 91.96 of this Subchapter
E, the formerly admitted attorney shall file copies
of the notices required by this section and proofs of
receipt with the Secretary of the Board and shall
serve a conforming copy on the Office of Disciplinary Counsel.
[ (b) ] (d) Responsibility to provide notice. Enforcement
Rule 217(c) further provides that the responsibility of the
formerly admitted attorney to provide the notice required
by this section shall continue for as long as the formerly
admitted attorney is disbarred, suspended, [ administrative suspension ] administratively suspended or on
inactive status.
§ 91.94. Effective date of suspension, disbarment,
administrative suspension or transfer to inactive
status.
(a) Effective date. Enforcement Rule [ 217(d) ]
217(d)(1) provides that orders imposing suspension, dis-
barment, administrative suspension or transfer to
inactive status shall be effective 30 days after entry; that
the formerly admitted attorney, after entry of the disbarment, suspension, administrative suspension or transfer
to inactive status order, shall not accept any new retainer
or engage as attorney for another in any new case or legal
matter of any nature; but that, during the period from
the entry date of the order to its effective date the
formerly admitted attorney may wind up and complete,
on behalf of any client, all matters which were pending on
the entry date.
(b) Effect of verified statement on waiting period
for reinstatement. Enforcement Rule 217(e)(3) provides that after the entry of an order of disbarment
or suspension for a period exceeding one year, the
waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the
formerly admitted attorney files the verified statement required by subsection (a) of this section; and
that if the order of disbarment or suspension contains a provision that makes the discipline retroactive to an earlier date, the waiting period will be
deemed to have begun on that earlier date.
Official Note: Subsection (b) of this section and
the corresponding provisions in § 89.272(a) and (b)
(relating to waiting period) apply only to orders
entered on or after February 28, 2015.
(Editor’s Note: The following rule is new and printed in
regular type to enhance readability.)
§ 91.95. Additional steps to be taken to disengage
from the practice of law.
(a) Cease and desist from using all forms of communication that convey eligibility to practice. Enforcement Rule
217(d)(2) provides that in addition to the steps that a
formerly admitted attorney must promptly take under
other provisions of this section to disengage from the
practice of law, a formerly admitted attorney shall
promptly cease and desist from using all forms of communication that expressly or implicitly convey eligibility to
practice law in the state courts of Pennsylvania, including
but not limited to professional titles, letterhead, business
cards, signage, websites, and references to admission to
the Pennsylvania Bar.
(b) Additional steps for certain types of discipline or
disability. Enforcement Rule 217(d)(3) provides that in
cases of disbarment, suspension for a period exceeding
one year, temporary suspension under Enforcement Rule
208(f) or 213(g), or disability inactive status under Enforcement Rule 216 or 301, a formerly admitted attorney
shall also promptly:
(1) resign all appointments as personal representative,
executor, administrator, guardian, conservator, receiver,
trustee, agent under a power of attorney, or other fiduciary position;
(2) close every IOLTA, Trust, client and fiduciary account;
(3) properly disburse or otherwise transfer all client
and fiduciary funds in his or her possession, custody or
control; and
(4) take all necessary steps to cancel or discontinue the
next regular publication of all advertisements and telecommunication listings that expressly or implicitly convey
eligibility to practice law in the state courts of Pennsylvania.
Official Note: Paragraph (b) of this section does not
preclude a respondent-attorney who voluntarily assumes
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inactive or retired status, is placed on administrative
suspension, is temporarily suspended under Enforcement
Rule 214, or is suspended for one year or less, from
completing existing appointments and accepting new appointments of the nature identified in paragraph (b)(1).
Nonetheless, in order to comply with §§ 91.91 (relating to
notification of clients in nonlitigation matters), 91.92
(relating to notification of clients in litigation matters),
and 91.93 (relating to notification of other persons) of this
Subchapter E, the formerly admitted attorney who desires to complete existing appointments or accept future
appointments must give written notice of the formerly
admitted attorney’s registration status or change in that
status to appointing and supervising judges and courts,
wards, heirs, beneficiaries, interested third parties, and
other recipients of the formerly admitted attorney’s fiduciary services, as notice of the formerly admitted attorney’s other-than-active status gives all interested parties
an opportunity to consider replacing the formerly admitted attorney or enlisting a person other than the formerly
admitted attorney to serve as the fiduciary in the first
instance. Although the formerly admitted attorney would
not be precluded by paragraph (b)(2) of this section from
continuing to use a fiduciary account registered with the
bank as an IOLTA or Trust Account, subsection (a) of this
section and § 91.101(e)(4) (relating to prohibited activities of a formerly admitted attorney) prohibit the formerly
admitted attorney from using or continuing to use account checks and deposit slips that contain the word
‘‘IOLTA,’’ ‘‘attorney,’’ ‘‘lawyer,’’ ‘‘esquire,’’ or similar appellation that could convey eligibility to practice in the state
courts of Pennsylvania. Notwithstanding the specific prohibitions of § 91.101 (relating to law-related activities of
formerly admitted attorneys), the formerly admitted attorney is authorized to perform those services necessary
to carry out the appointment with the exception of any
service that would constitute the unauthorized practice of
law if engaged in by a nonlawyer. In relation to formerly
admitted attorneys who are disbarred, suspended for a
period exceeding one year, temporarily suspended under
Enforcement Rule 208(f) or 213(g), or transferred to
disability inactive status, the requirements of paragraph
(b)(1) of this section continue throughout the term of the
disbarment, suspension, temporary suspension, or disability inactive status, thereby precluding any new appointment or engagement.
(c) Compliance records and submission thereof. Enforcement Rule 217(d)(3) further provides that the formerly
admitted attorney shall maintain records to demonstrate
compliance with the provisions of subsections (a) and (b)
of this section and shall provide proof of compliance at
the time the formerly admitted attorney files the verified
statement required by § 91.96 of this Subchapter E.
§
[ 91.95 ] 91.96. Proof of compliance.
(a) General rule. Enforcement Rule [ 217(e) ] 217(e)(1)
provides that within ten days after the effective date of
the disbarment, suspension, administrative suspension or
transfer to inactive status order, the formerly admitted
attorney shall file with the Secretary of the Board a
verified statement (Form DB-25) (Statement of Compliance) [ showing ] and serve a copy on Disciplinary
Counsel. In the verified statement, the formerly
admitted attorney shall:
(1) [ That ] aver that the provisions of the order and
the Enforcement Rules have been fully complied with;
[ and ]
549
(2) [ All ] list all other state, federal and administrative jurisdictions to which [ such person ] the formerly
admitted attorney is admitted to practice[ . ];
[ (b) Notice of address. Enforcement Rule 217(e)
further provides that such Form DB-25 shall also
set forth the residence or other address of the
formerly admitted attorney where communications
to such person may thereafter be directed. ]
(3) aver that he or she has attached copies of the
notices required by subdivisions (a), (b), and (c)(1)
and (c)(2) of Enforcement Rule 217 and proofs of
receipt, or, in the alternative, aver that he or she
has no clients, third persons to whom a fiduciary
duty is owed, or persons with whom the formerly
admitted attorney has professional contacts, to so
notify;
(4) in cases of disbarment or suspension for a
period exceeding one year, aver that he or she has
attached his or her attorney registration certificate
for the current year, certificate of admission, any
certificate of good standing issued by the Prothonotary, and any other certificate required by subdivision (h) of Enforcement Rule 217 to be surrendered;
or, in the alternative, aver that he or she has
attached all such documents within his or her
possession, or that he or she is not in possession of
any of the certificates required to be surrendered;
(5) aver that he or she has complied with the
requirements of paragraph (2) of subdivision (d) of
Enforcement Rule 217, and aver that he or she has,
to the extent practicable, attached proof of compliance, including evidence of the destruction, removal, or abandonment of indicia of Pennsylvania
practice; or, in the alternative, aver that he or she
neither had nor employed any indicia of Pennsylvania practice;
(6) in cases of disbarment, suspension for a period exceeding one year, temporary suspension under Enforcement Rule 208(f) or 213(g), or disability
inactive status under Enforcement Rule 216 or 301,
aver that he or she has complied with the requirements of paragraph (3) of subdivision (d) of Enforcement Rule 217, and aver that he or she has
attached proof of compliance, including resignation
notices, evidence of the closing of accounts, copies
of cancelled checks and other instruments demonstrating the proper distribution of client and fiduciary funds, and requests to cancel advertisements
and telecommunication listings; or, in the alternative, aver that he or she has no applicable appointments, accounts, funds, advertisements, or telecommunication listings;
(7) aver that he or she has served a copy of the
verified statement and its attachments on the Office of Disciplinary Counsel;
(8) set forth the residence or other address where
communications to such person may thereafter be
directed; and
(9) sign the statement.
Official Note: A respondent-attorney who is
placed on temporary suspension is required to
comply with subsection (a) and file a verified statement. Upon the entry of a final order of suspension
or disbarment, the respondent-attorney must file a
supplemental verified statement containing the in-
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formation and documentation not applicable at the
time of the filing of the initial statement, or all of
the information and documentation required by
subsection (a) if the respondent-attorney has failed
to file the initial statement. Although the grant of
retroactivity is always discretionary, a respondentattorney who fails to file a verified statement at the
time of temporary suspension should not expect a
final order to include a reference to retroactivity.
(b) Required certification. Enforcement Rule
217(e)(1) also provides that the statement shall
contain an averment that all statements contained
therein are true and correct to the best of the
formerly admitted attorney’s knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.
(c) Cooperation required. Enforcement Rule
217(e)(2) provides that a formerly admitted attorney shall cooperate with Disciplinary Counsel and
respond completely to questions by Disciplinary
Counsel regarding compliance with the provisions
of this section.
[ (c) ] (d) Cross reference. See § 95.3 (relating to monitoring of notices to be sent by formerly admitted attorneys).
§
[ 91.96 ] 91.97. Publication of notice of suspension,
disbarment, administrative suspension or transfer to
inactive status.
Enforcement Rule 217(f) provides that the Board shall
cause a notice of the suspension, disbarment, administrative suspension or transfer to inactive status to be
published in the legal journal and a newspaper of general
circulation in the county in which the formerly admitted
attorney practiced. If there is no such legal journal, the
notice shall be published in the legal journal of an
adjoining county. Upon entry of an order imposing suspension, disbarment, administrative suspension or transfer to inactive status, such notice shall be published
forthwith and shall be transmitted to such courts as may
be appropriate. The cost of publication shall be
assessed against the formerly admitted attorney.
§
[ 91.97 ] 91.98. Action to protect clients of formerly
admitted attorney.
Enforcement Rule 217(g) provides that the Board shall
promptly transmit a certified copy of the order of suspension, disbarment, administrative suspension or transfer to
inactive status to the president judge of the court of
common pleas in the judicial district in which the formerly admitted attorney practiced; and that the president
judge shall make such further order as may be necessary
to fully protect the rights of the clients of the formerly
admitted attorney.
§
[ 91.98 ] 91.99. Maintenance of records.
(a) General rule. Enforcement Rule 217(i) provides that
a formerly admitted attorney shall keep and maintain
records of the various steps taken by such person under
the Enforcement Rules so that, upon any subsequent
proceeding instituted by or against such person, proof of
compliance with the Enforcement Rules and with the
disbarment, suspension, administrative suspension or
transfer to inactive status order will be available; and
that proof of compliance with the Enforcement Rules
shall be a condition precedent to any petition for reinstatement.
(b) Cross reference. See § 95.3 (relating to monitoring
of notices to be sent by formerly admitted attorneys).
§
[ 91.99 ] 91.100. Indicia of licensure.
Enforcement Rule 217(h) provides that within ten days
after the effective date of an order of disbarment or
suspension for a period longer than one year, the formerly
admitted attorney shall surrender to the Board the
certificate issued by the Attorney Registration Office
under § 93.143 (relating to issue of certificate as evidence
of compliance) for the current year, along with any
certificate of good standing issued under Pennsylvania
Bar Admission Rule 201(d) (relating to certification of
good standing), certificate of admission issued under
Pennsylvania Bar Admission Rule 231(d)(3) (relating to
action by Prothonotary), certificate of licensure issued
under Pennsylvania Bar Admission Rule 341(e)(3) (relating to motion for licensure), Limited In-House Corporate
Counsel License issued under Pennsylvania Bar Admission Rule 302 (relating to limited in-house corporate
counsel license) or limited certificate of admission issued
under Pennsylvania Bar Admission Rule 303 (relating to
limited admission of military attorneys). The Board may
destroy the annual certificate issued under § 93.143, but
shall retain any other documents surrendered under this
subdivision and shall return those documents to the
formerly admitted attorney in the event that he or she is
subsequently reinstated.
§
[ 91.100 ] 91.101. Law-related activities of formerly
admitted attorneys.
(a) General rule. A formerly admitted attorney may not
engage in any form of law-related activities in this
Commonwealth except in accordance with the requirements of this section.
*
*
*
*
*
Subchapter F. PROTECTION OF THE INTERESTS
OF CLIENTS
§ 91.121. Appointment of conservator to protect interests of clients of absent attorney.
(a) General rule. Enforcement Rule 321(a) provides
that upon application of Disciplinary Counsel or any
other interested person with the written concurrence of
Disciplinary Counsel, the president judge of a court of
common pleas shall have the power to appoint one or
more eligible persons to act as conservators of the affairs
of an attorney or formerly admitted attorney if:
(1) the attorney maintains or has maintained an office
for the practice of law within the judicial district; and
(2) any of the following applies:
(i) the attorney is made the subject of an order under
§ 91.151 (relating to emergency temporary suspension
orders and related relief); or
(ii) the president judge of the court of common pleas
pursuant to § [ 91.97 ] 91.98 (relating to action to protect clients of formerly admitted attorney) by order
directs Disciplinary Counsel to file an application under
Enforcement Rule 321; or
*
*
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Subchapter G. EMERGENCY PROCEEDINGS
§ 91.151. Emergency temporary suspension orders
and related relief.
*
*
*
*
*
(e) Contempt of the Board. Enforcement Rule 208(f)(5)
provides that:
(1) the Board on its own motion, or upon the petition of
Disciplinary Counsel, may issue a rule to show cause why
the respondent-attorney should not be placed on temporary suspension whenever it appears that the respondentattorney has disregarded an applicable provision of the
Enforcement Rules, [ refused ] failed to maintain or
produce the records required to be maintained and
produced under Pa.R.P.C. 1.15(c) and subdivisions
(e) and (g) of Enforcement Rule 221 in response to a
request or demand authorized by Enforcement Rule
221(g) or any provision of these Rules, failed to
comply with a valid subpoena, or engaged in other
conduct that in any such instance materially delays or
obstructs the conduct of a proceeding under this Subpart;
(2) the rule to show cause shall be returnable within
[ 30 ] ten days;
(3) if the response to the rule to show cause raises
issues of fact, the [ Chair of the ] Board Chair may
direct that a hearing be held before a member of the
Board who shall submit a report to the Board upon the
conclusion of the hearing;
(4) if the period for response to the rule to show cause
has passed without a response having been filed, or after
consideration of any response and any report of a Board
member following a hearing under paragraph (3), the
Board may recommend to the Supreme Court that the
respondent-attorney be placed on temporary suspension;
and
(5) the recommendation of the Board shall be reviewed
by the Supreme Court as provided in § 89.207 (relating
to review and action in the Supreme Court), although
the time for either party to file with the Court a
petition for review of the recommendation or determination of the Board shall be fourteen days after
the entry of the Board’s recommendation or determination, and any answer or responsive pleading
shall be filed within ten days after service of the
petition for review.
*
*
*
*
*
Subchapter H. FUNDS OF CLIENTS AND THIRD
PERSONS; MANDATORY OVERDRAFT
NOTIFICATION
§ 91.177. Required records.
(a) In general. Enforcement Rule 221(e) provides that
an attorney shall maintain and preserve for a period
of five years after termination of the client-lawyer
or Fiduciary relationship or after distribution or
disposition of the property, whichever is later, the
following records:
(1) the writing required by Pa.R.P.C. 1.5 (relating
to the requirement of a writing communicating the
basis or rate of the fee);
(2) the records identified in Pa.R.P.C. 1.5(c) (relating to the requirement of a written fee agreement
551
and distribution statement in a contingent fee matter); and
(3) the following books and records for each Trust
Account and for any other account in which Rule 1.15
Funds are held:
[ (1) ] (i) all transaction records provided to the attorney by the [ Eligible ] Financial Institution, such as
periodic statements, canceled checks in whatever form,
deposited items and records of electronic transactions;
and
[ (2) ] (ii) check register or separately maintained
ledger, which shall include the payee, date, purpose and
amount of each check, withdrawal and transfer, the
payor, date, and amount of each deposit, and the matter
involved for each transaction; provided, however, that
where an account is used to hold funds of more
than one client, a lawyer shall also maintain an
individual ledger for each trust client, showing the
source, amount and nature of all funds received
from or on behalf of the client, the description and
amounts of charges or withdrawals, the names of
all persons or entities to whom such funds were
disbursed, and the dates of all deposits, transfers,
withdrawals and disbursements.
(b) Regular trial balance and monthly reconciliations. Enforcement Rule 221(e) also provides that: a
regular trial balance of the individual client trust
ledgers shall be maintained; the total of the trial
balance must agree with the control figure computed by taking the beginning balance, adding the
total of moneys received in trust for the client, and
deducting the total of all moneys disbursed; on a
monthly basis, a lawyer shall conduct a reconciliation for each fiduciary account; and the reconciliation is not complete if the reconciled total cash
balance does not agree with the total of the client
balance listing.
(c) Preservation of records and computations. Enforcement Rule 221(e) provides that a lawyer shall
preserve for a period of five years copies of all
records and computations sufficient to prove compliance with the requirement of subsection (b).
[ (b) ] (d) Form. Enforcement Rule 221(f) provides that
the records required by this [ rule ] section may be
maintained in [ electronic or ] hard copy form or by
electronic, photographic, or other media provided
that the records otherwise comply with this section
and that printed copies can be produced. Whatever
method is used to maintain required records must
have a backup so that the records are secure and
always available. If records are kept only in electronic
form, then such records shall be backed up [ at least
monthly on a separate electronic storage device ],
on a separate electronic storage device, at least at
the end of any day on which entries have been
entered into the records.
[ (c) Availability. Enforcement Rule 221(g) provides that the records required by this rule may be
subject to subpoena and must be produced in
connection with an investigation or hearing pursuant to these rules; and that failure to produce such
records may result in the initiation of proceedings
pursuant to § 91.151 (relating to emergency temporary suspension orders and related relief), which
permits disciplinary counsel to commence a pro-
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ceeding for the temporary suspension of a
respondent-attorney who refuses to comply with a
valid subpoena. ]
(Editor’s Note: Rules 91.178 and 91.179 are new and
printed in regular type to enhance readability.)
§ 91.178. Availability of required records and requirement to produce.
(a) In general. Enforcement Rule 221(g) provides that
the records required to be maintained by Pa.R.P.C. 1.15
shall be readily accessible to the lawyer and available for
production to the Pennsylvania Lawyers Fund for Client
Security and the Office of Disciplinary Counsel in a
timely manner upon request or demand by either agency
made pursuant to the Enforcement Rules, these Rules,
the Pennsylvania Lawyers Fund for Client Security Board
Rules and Regulations, agency practice, or subpoena.
(b) Request for production by letter. Enforcement Rule
221(g)(1) provides that upon a request by Disciplinary
Counsel under subdivision (g) of that Enforcement Rule,
which request may take the form of a letter to the
respondent-attorney briefly stating the basis for the request and identifying the type and scope of the records
sought to be produced, a respondent-attorney must produce the records within ten business days after personal
service of the letter on the respondent-attorney or after
the delivery of a copy of the letter to an employee, agent
or other responsible person at the office of the
respondent-attorney as determined by the address furnished by the respondent-attorney in the last registration
statement filed by the respondent-attorney pursuant to
Enforcement Rule 219(d) (relating to annual registration
of attorneys), but if the latter method of service is
unavailable, within ten business days after the date of
mailing a copy of the letter to the last registered address
or addresses set forth on the statement.
(c) Request for production pursuant to Board Rule.
Enforcement Rule 221(g)(2) provides in part that when
Disciplinary Counsel’s request or demand for Pa.R.P.C.
1.15 records is made under an applicable provision of
these Rules, the respondent-attorney must produce the
records and must do so within the time frame established
by these Rules. See § 87.7(e) (relating to production of
Pa.R.P.C. 1.15 records upon Disciplinary Counsel’s request in a Form DB-7 (Request for Statement of Respondent’s Position) or Form DB-7A (Supplemental Request
for Statement of Respondent’s Position)).
(d) Request for production by subpoena. Enforcement
Rule 221(g)(2) provides in part that when Disciplinary
Counsel’s request or demand for Pa.R.P.C. 1.15 records is
made by subpoena under Enforcement Rule 213(a), the
respondent-attorney must produce the records and must
do so within the time frame established by Enforcement
Rule 213 and these Rules. See Enforcement Rule 213(b)
and § 91.2(b) (both of which relate to procedure for
issuance of subpoenas).
§ 91.179. Effect of failure to produce required records.
Enforcement Rule 221(g)(3) provides that failure to
produce Pa.R.P.C. 1.15 records in response to a request or
demand for such records may result in the initiation of
proceedings pursuant to Enforcement Rule 208(f)(1) or
(f)(5) (relating to emergency temporary suspension orders
and related relief), the latter of which specifically permits
Disciplinary Counsel to commence a proceeding for the
temporary suspension of a respondent-attorney who fails
to maintain or produce Pa.R.P.C. 1.15 records after
receipt of a request or demand authorized by subdivision
(g) of Enforcement Rule 221 or any provision of these
Rules; and that if at any time a hearing is held before the
Board pursuant to Enforcement Rule 208(f) (or § 91.151
relating to emergency temporary suspension orders and
related relief) as a result of a respondent-attorney’s
alleged failure to maintain or produce Pa.R.P.C. 1.15
records, a lawyer-Member of the Board shall be designated to preside over the hearing.
Official Note: If Disciplinary Counsel files a petition
for temporary suspension, the respondent-attorney will
have an opportunity to raise at that time any claim of
impropriety pertaining to the request or demand for
records.
CHAPTER 93. ORGANIZATION AND
ADMINISTRATION
Subchapter G. FINANCIAL MATTERS
TAXATION OF COSTS
§ 93.111. Determination of reimbursable expenses.
(a) General rule. Enforcement Rule 208(g)(2) provides
that expenses taxable by the Board pursuant to
§ 89.205(b) (relating to informal admonition or private
reprimand following formal hearing) shall be prescribed
by these rules. See also § 89.209 (relating to expenses of
formal proceedings) and § 89.278 (relating to expenses of
reinstatement proceedings).
(b) Enumeration of expenses. Taxable expenses under
these rules shall include, but not be limited to, the
following:
(1) court reporter fees and transcript costs;
(2) the fees and expenses of expert and other witnesses;
(3) the cost of serving subpoenas, pleadings and briefs;
(4) the charges by banks and other institutions for
production of statements, checks and other records in
response to subpoenas or otherwise;
(5) the cost of reproducing documents introduced or
offered as evidence at hearings; [ and ]
(6) the cost of reproducing pleadings and briefs[ . ];
and
(7) the cost of publishing notices in the legal
journal and a newspaper of general circulation as
required by Enforcement Rule 217(f) (relating to
publication of a notice of suspension, disbarment,
administrative suspension or transfer to inactive
status) or § 89.274(b) (relating to publication of a
notice of reinstatement hearing).
(c) Administrative fee. Enforcement Rule 208(g)(3) provides that the expenses taxable under § 89.205(b) (relating to informal admonition, private reprimand, or public
reprimand following formal hearing) or § 89.209 (relating
to expenses of formal proceedings) may include an administrative fee except that an administrative fee shall not be
included where the discipline imposed is an informal
admonition; and that the administrative fee shall be
$250.
ANNUAL REGISTRATION OF ATTORNEYS
§ 93.142. Filing of annual fee form by attorneys.
(a) Transmission of form. Enforcement Rule 219(c) provides that on or before May 15 of each year the Attorney
Registration Office shall transmit to all attorneys required by the rule to pay an annual fee, except those
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attorneys who have elected electronic filing, a form
required by subsection (b) of this section; and that on or
before May 15 of each year subsequent to the year in
which an attorney elects electronic filing, the Attorney
Registration Office shall transmit to such attorney a
notice by e-mail to register by July 1.
(b) Filing of annual fee form. Enforcement Rule 219(d)
provides that on or before July 1 of each year all
attorneys required by the rule to pay an annual fee shall
file with the Attorney Registration Office a signed or
electronically endorsed form prescribed by the Attorney
Registration Office in accordance with the following procedures:
(1) The form shall set forth:
(i) The date on which the attorney was admitted to
practice, licensed as foreign legal consultant, granted
limited admission as an attorney participant in defender
and legal services programs pursuant to Pa.B.A.R. 311, or
issued a Limited In-House Corporate Counsel License,
and a list of all courts (except courts of this Commonwealth) and jurisdictions in which the person has ever
been license’ to practice law, with the current status
thereof.
(ii) The current residence and office addresses of the
attorney, each of which shall be an actual street address
or rural route box number, and the Attorney Registration
Office shall refuse to accept a form that sets forth only a
post office box number for either required address. A
preferred mailing address different from those addresses
may also be provided on the form and may be a post
office box number. The attorney shall indicate which of
the addresses, the residence, office or mailing address, as
well as telephone and fax number will be accessible
through
the
website
of
the
Board
(http://
www.padisciplinaryboard.org/) and by written or oral request to the Board. Upon an attorney’s written request
submitted to the Attorney Registration Office and for
good cause shown, the contact information provided by
the attorney will be nonpublic information and will not be
published on the Board’s website or otherwise disclosed.
Official Note: The Note to Enforcement Rule
219(d)(1)(ii) explains that public web docket sheets will
show the attorney’s address as entered on the court
docket.
(iii) The name of each [ financial institution in
Pennsylvania ] Financial Institution, as defined in
§ 91.171 (Definitions), within or outside this Commonwealth in which the attorney on May 1 of the
current year or at any time during the preceding 12
months held funds of a client or a third person subject to
Rule 1.15 of the Pennsylvania Rules of Professional
Conduct. The form shall include the name and account
number for each account in which the [ lawyer holds ]
attorney held such funds, and each IOLTA Account shall
be identified as such. The form provided to a person
holding a Limited In-House Corporate Counsel License or
a Foreign Legal Consultant License need not request the
information required by this subparagraph.
Official Note: If an attorney employed by a law
firm receives fiduciary funds from or on behalf of a
client and deposits or causes the funds to be deposited into a law firm account, the attorney must
report the account of deposit under this subparagraph.
553
(iv) Every account not reported under subparagraph (iii), that held funds of a client or third party,
and over which the attorney had sole or shared
signature authority or authorization to transfer
funds to or from the account, during the same time
period specified in subparagraph (iii). For each
account, the attorney shall provide the name of the
financial institution (whether or not the entity
qualifies as a ‘‘Financial Institution’’ under RPC
1.15(a)(4)), location, and account number.
(v) Every business operating account maintained
or utilized by the attorney in the practice of law
during the same time period specified in subparagraph (iii). For each account, the attorney shall
provide the name of the financial institution, location and account number.
[ (iv) ] (vi) A certification reading as follows: ‘‘I certify
that all Trust Accounts that I maintain are in financial
institutions approved by the Supreme Court of Pennsylvania for the maintenance of such accounts pursuant to
Pennsylvania Rule of Disciplinary Enforcement 221 (relating to mandatory overdraft notification) and that each
Trust Account has been identified as such to the financial
institution in which it is maintained.’’
[ (v) ] (vii) A statement that any action brought
against the attorney by the Pennsylvania Lawyers Fund
for Client Security for the recovery of monies paid by the
Fund as a result of claims against the attorney may be
brought in the Court of Common Pleas of Allegheny,
Dauphin or Philadelphia County.
[ (vi) ] (viii) Whether the attorney is covered by professional liability insurance on the date of registration in
the minimum amounts required by Rule of Professional
Conduct 1.4(c). Rule 1.4(c) does not apply to attorneys
who do not have any private clients, such as attorneys in
full-time government practice or employed as in-house
corporate counsel.
Official Note: The Disciplinary Board will make the
information regarding insurance available to the public
upon written or oral request and on its website. The
requirement of Rule 219(d)(3) that every attorney who
has filed an annual fee form or elects to file the form
electronically must notify the Attorney Registration Office
of any change in the information previously submitted
within 30 days after such change will apply to the
information regarding insurance.
[ (vii) ] (ix) Such other information as the Attorney
Registration Office may from time to time direct.
(2) Payment of the annual fee shall accompany the
form. IOLTA, trust, escrow and other fiduciary account
checks tendered in payment of the annual fee will not be
accepted. If the form and payment are incomplete or if a
check in payment of the annual fee has been returned to
the Board unpaid, the annual fee shall not be deemed to
have been paid until a collection fee, and one or both of
the late payment penalties prescribed in § 93.144(a)(1)
and (2) of these rules if assessed, shall also have been
paid. The amount of the collection fee shall be established
by the Board annually after giving due regard to the
direct and indirect costs incurred by the Board during the
preceding year for checks returned to the Board unpaid.
On or before July 1 of each year the Office of the
Secretary shall publish in the Pennsylvania Bulletin a
notice of the collection fee established by the Board for
the coming registration year.
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(3) Every attorney who has filed the form or elects to
file the form electronically shall notify the Attorney
Registration Office of any change in the information
previously submitted, including e-mail address, within 30
days after such change.
(4) Upon original admission to the bar of this Commonwealth, licensure as a Foreign Legal Consultant, issuance
of a Limited In-House Corporate Counsel License, or
limited admission as an attorney participant in defender
and legal services programs pursuant to Pa.B.A.R. 311, a
person shall concurrently file a form under this section
for the current registration year, but no annual fee shall
be payable for the registration year in which originally
admitted or licensed.
CHAPTER 95. STATEMENTS OF POLICY
§ 95.2. Investigation of the mishandling and conversion of funds.
[ Where the Office of Disciplinary Counsel receives evidence of the conversion of entrusted
funds by a respondent-attorney, it is the policy of
the Board that Disciplinary Counsel shall seek the
issuance of a subpoena duces tecum to the
respondent-attorney and any relevant financial institution for at least the following records: ]
(a) Where the Office of Disciplinary Counsel has
some factual basis to support a suspicion or concern that there has been improper commingling or
mishandling of entrusted funds or a failure to
promptly account for or distribute such funds by a
respondent-attorney, it is the policy of the Board
that Disciplinary Counsel shall make a request or
demand to the respondent-attorney for all relevant
records, including the records required to be maintained under Pa.R.P.C. 1.15(c), Enforcement Rule
221(e), and § 91.177(a) (all of which relate to required records), unless such a request or demand
would jeopardize an ongoing investigation. Disciplinary Counsel shall utilize one or more of the
procedures authorized by Enforcement Rule 221(g)
and § 91.178 (relating to availability of required
records and requirement to produce), and Enforcement Rule 213 and § 91.2 (relating to subpoenas).
Official Note: An administrative agency’s request
or demand for production of required records has
been upheld if the agency has some factual basis to
support a suspicion or concern that the law has
been violated even if the evidence does not establish a violation, or the circumstances justify the
agency’s seeking assurances that the law has not
been violated; 2) the records sought are reasonably
relevant to the inquiry; and 3) the demand is not
too indefinite or overbroad. United States v. Morton
Salt Co., 338 U.S. 632, 642-643, 652 (1950), cited in
State Real Estate Com. v. Roberts, 441 Pa. 159,
164-165, 271 A.2d 246, 248 (1970), cert. denied, 402
U.S. 905 (1971); Unnamed Attorney v. Attorney Grievance Comm’n, 313 Md. 357, 364-365, 545 A.2d 685, 689
(1988).
(b) Where the Office of Disciplinary Counsel receives evidence of the misappropriation or conversion of entrusted funds by a respondent-attorney, it
is the policy of the Board that Office of Disciplinary
Counsel shall seek to obtain relevant records under
the procedures in subsection (a), and, where
deemed appropriate or necessary, seek the issuance
of a subpoena duces tecum to the respondent-
attorney and any relevant financial institution for
some or all of the following records:
(1) all accounts into which the respondent-attorney
may have deposited or otherwise transferred entrusted
funds during a period reasonably related to that during
which the misappropriation or conversion occurred;
[ and ]
(2) those records which are required to be maintained
under [ the Disciplinary Rules relating to the handling or holding of funds or other property. ]
Pa.R.P.C. 1.15(c), Enforcement Rule 221(e), and
§ 91.177(a)—(c); and
[ Official Note: The records referred to in paragraph (2) include those maintained under former
DR 9-102 of the Code of Professional Responsibility
and Rules 1.5(c) and 1.15 of the Rules of Professional Conduct. ]
(3) all other records that may be relevant or
necessary to confirming, corroborating or determining the extent of the misappropriation or conversion.
(c) No limitation intended. This section does not
prohibit Disciplinary Counsel, at any stage of an
investigation, from: 1) verbally requesting that a
respondent-attorney voluntarily produce records; 2)
seeking records from a financial institution or a
person other than the respondent-attorney; or 3)
seeking relevant records, by any authorized manner, of any type or nature and in relation to a
suspected violation of a type other than one identified in this section.
§ 95.3. Monitoring of notices to be sent by formerly
admitted attorneys.
It is the practice of the Office of the Secretary to
monitor the filing by formerly admitted attorneys of the
verified statement of compliance required under
§ [ 91.95 ] 91.96 (relating to proof of compliance) and, if
the statement is not filed within the prescribed period,
the Office of the Secretary will mail to the formerly
admitted attorney a reminder of the obligation under
§ [ 91.95 ] 91.96 to file the statement. Failure by the
Office of the Secretary to mail the reminder, or failure by
the formerly admitted attorney to receive the reminder,
shall not relieve the formerly admitted attorney of the
obligation to file the verified statement of compliance. As
required by § [ 91.98 ] 91.99 (relating to maintenance of
records), the Office of the Secretary will not accept for
filing a petition for reinstatement until the formerly
admitted attorney has filed the verified statement of
compliance or obtained a waiver from the Board of the
requirement to file the statement. As required by
Enforcement Rule 217(e)(3) and subsections (a) and
(b) of § 89.272 (relating to waiting period), if an
order of disbarment or suspension for a period
exceeding one year is entered on or after February
28, 2015, the waiting period for eligibility to apply
for reinstatement to the practice of law shall not
begin until the formerly admitted attorney who is
the subject of that order files the verified statement
of compliance required by § 91.96.
[Pa.B. Doc. No. 15-152. Filed for public inspection January 30, 2015, 9:00 a.m.]
PENNSYLVANIA BULLETIN, VOL. 45, NO. 5, JANUARY 31, 2015
THE COURTS
Title 255—LOCAL
COURT RULES
CLINTON COUNTY
Adult Probation and Parole Services Administrative Fee; No. AD-3-2014
Order of Court
And Now, this 8th day of December, 2014, pursuant to
42 Pa.C.S.A. § 9728(g), the Court hereby orders the
imposition of a monthly probation administrative fee of
Ten and 00/100 ($10.00) Dollars per month assessed
against all offenders placed on probation, parole, accelerated rehabilitative disposition (ARD), probation without
verdict (PWV), or intermediate punishment (IP). Said
increase is to be effective thirty (30) days after publication in the Pennsylvania Bulletin and applied only to
offenders sentenced or placed on ARD on or after the
publication requirement has been satisfied. In support of
this Order establishing a monthly probation administrative fee, the Court finds as follows:
1. That pursuant to 42 Pa.C.S.A. § 9728(g), any costs
of the Adult Probation Department, including but not
limited to, any reasonable administrative costs associated
with the collection of restitution, reparation fees, costs,
and fines, shall be borne by the offender.
2. That, heretofore, the Court never assessed a
monthly probation administrative fee against offenders
sentenced to probation, parole, ARD, PWV, or IP.
3. That the Adult Probation Department expends significant time and resources administering and collecting
restitution, reparation fees, costs, and fines from offenders placed on probation, parole, ARD, PWV, and IP.
4. That the Court, through the Adult Probation Department, can no longer solely bear all of the costs of
collecting restitution from offenders placed on probation,
parole, ARD, PWV, and IP, and that it is fair and
reasonable to assess a monthly probation administrative
fee against offenders for this purpose.
The following guidelines shall be implemented in the
assessment and collection of the monthly probation administrative fee:
1. All offenders placed on probation, parole, ARD, PWV,
and IP shall be assessed a monthly probation administrative fee of Ten and 00/100 ($10.00) Dollars for every
month or fraction thereof that an offender is under
supervision.
2. Said monthly probation administrative fee shall be
considered a condition of probation, parole, ARD, PWV,
and IP. Failure to pay monthly probation administrative
fees shall be considered by the Court to be a technical
violation of an offender’s conditions of supervision and
may result in a revocation of a sentence of probation,
parole, ARD, PWV, or IP.
3. The monthly probation administrative fee may be
paid by the offender at one time or on a monthly basis.
555
shall be assessed on an offender only once, and the Adult
Probation Department shall apportion the monthly probation administrative fee accordingly.
6. Any offender committed to, remanded to, or detained
in a jail or prison for a violation of their probation, parole,
ARD, PWV, or IP shall have their monthly probation
administrative fee accrue until such time as the Court
revokes said probation, parole, ARD, PWV, or IP. Upon
release, the monthly probation administrative fee shall be
re-assessed by the Adult Probation Department if the
offender will be under the supervision of the Adult
Probation Department.
7. The funds collected pursuant to this administrative
order shall be deposited in a fund for the exclusive use by
the Twenty-Fifth Judicial District of Pennsylvania. This
fund shall be used to support the operation of the Court’s
Adult Probation Department, technology enhancement,
and education and training for Adult Probation officers
and staff. Expenditures from this account can be authorized only by the President Judge. An accounting of this
administrative fee account shall be made quarterly by the
Chief Probation Officer in writing to the President Judge.
By the Court
CRAIG P. MILLER,
President Judge
[Pa.B. Doc. No. 15-153. Filed for public inspection January 30, 2015, 9:00 a.m.]
UNION COUNTY
Judicial Administration; CP-60-AD-1-2015
Order
And Now, January 7, 2015, the 17th Judicial District
Local Rule of Judicial Administration 17CR9756-UC, Reentry Plan, is adopted for use in Union County, Court of
Common Pleas of the 17th Judicial District, Commonwealth of Pennsylvania, effective thirty (30) days after
publication in the Pennsylvania Bulletin.
The 17th Judicial District Court Administrator is Ordered and Directed to do the following:
1) File seven (7) certified copies of this Order and Rule
with the Administrative Office of the Pennsylvania
Courts.
2) Forward two (2) certified copies of this Order and
Rule and a computer diskette containing the text of the
Rule to the Legislative Reference Bureau for publication
in the Pennsylvania Bulletin.
3) Forward one (1) certified copy of this Order and
Rule to the Civil Procedural Rules Committee of the
Supreme Court of Pennsylvania.
4. When an offender’s probation, parole, ARD, PWV, or
IP is transferred to Adult Probation from another jurisdiction for supervision purposes, the monthly probation
administrative fee shall be established from the date the
case is accepted for supervision.
4) Copies shall be kept continuously available for public inspection in the Office of the Union County Prothonotary.
5. In those instances where an offender has multiple
active cases, the monthly probation administrative fee
MICHAEL T. HUDOCK,
President Judge
By the Court
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556
THE COURTS
17CR9756-UC
UNION COUNTY COURT OF COMMON PLEAS
REENTRY PLAN
I—Sentencing Considerations
The Court of Common Pleas of and for Union County,
in collaboration with the Union County Probation Department have created this reentry plan with a focus on
certain attainable goals. First and foremost are the
rehabilitative needs of the offender. Clearly all offenders
sentenced to periods of confinement in our county jail will
eventually be returned to the community. Most of these
individuals will be reintegrated into the community as
part of a parole plan, while a very small percentage of
offenders will serve their maximum sentence in confinement and will be returned to the community without the
benefit of a structured parole plan. In either case, the
likelihood the individual will be successful in a return to
society is increased dramatically if their rehabilitative
needs are accurately identified and addressed while they
are still in confinement.
Secondly, the Court must impose a sentence consistent
with the protection of the public. Therefore, it is absolutely essential that individuals referred to the Union
County Probation Department be subjected to a comprehensive Risk/Needs Assessment. This assessment shall be
performed on all individuals referred to the field agency
regardless of the manner in which their case is disposed.
In cases where the Court has imposed a sentence of
probation or intermediate punishment, there is a reasonable expectation that the individual is perceived to present a low risk to the public. Those individuals sentenced
to confinement generally present an elevated risk to the
public and through an approved assessment tool probation staff can identify areas of concern. Measures can
then be taken to reduce those risk factors while the
individual remains incarcerated.
Thirdly, when imposing a sentence of confinement the
Court shall ‘‘consider the gravity of the offense as it
relates to the impact on the life of the victim and on the
community.’’ This consideration moves a more punitive
sentence to the forefront and places less emphasis on the
rehabilitative needs of the offender or the risks the
individual presents to the community at large. Nevertheless, planning for the eventual reentry of the individual
into the community should begin immediately upon sentence commencement and shall include a Risk/Needs
Assessment, goal identification and implementation of
programming.
Finally, the inherent costs associated with housing
inmates in the county jail must be weighed against the
punitive and rehabilitative needs of the offender and the
risks the individual poses to the public. Due to the
limited capacity of the Union County Jail, the institutional population is constantly well beyond 100%, resulting in inmates being housed in neighboring county jails at
per diems ranging from $60 to $100. If the risks and
needs of the offender can be addressed short of incarceration, sentences of probation or intermediate punishment
should be considered. If incarceration remains the most
viable option, then reentry of the offender into the
community must be given forethought and planning from
the time of sentence commencement.
II—Programming
Among the most common obstacles facing Union
County inmates are drug and/or alcohol addiction, lack of
education, inadequate or no available housing, poor em-
ployment records coupled with lack of job skills, limited
life skills and an absence of a positive support network.
Additionally, some inmates struggle with mental health
disorders including anger issues and/or poor impulse
control. Many of these individuals are without the resources needed to obtain appropriate treatment and/or
prescription medications.
Union County is fortunate to be in a somewhat unique
position. In 2012, the county implemented a day reporting
program which now provides programming for many of
the obstacles facing inmates as they prepare for reentry.
In April of 2013, all programming was moved to the Day
Reporting Center at 480 Hafer Road, Lewisburg, PA. In a
sense, Union County provides ‘‘one stop shopping’’ in a
building which previously housed the local Army Reserve
Unit. Unlike many county day reporting programs, Union
County not only owns the facility and the five acres of
land on which it sits, but they also employ the staff
providing oversight for the various programs. Full time
employees with offices at the Day Reporting Center
include a program director, two adult probation officers
(one whose primary focus is community service), a maintenance supervisor, and an administrative assistant. Contracted services provided at the center include G.E.D.
instruction through the Central Susquehanna Intermediate Unit, Retail Theft Prevention contracted through the
National Association For Shoplifting Prevention and Drug
and Alcohol Counseling contracted through Gaudenzia,
Inc. Additional non-contracted services include life skills
through the Community Action Agency, job search using
computers linked to Career Link, coordination of community service both on grounds and off, and Anger Management and Credit counseling as needed.
III—Reentry
In determining an offender’s eligibility to participate in
a formal reentry program, the Union County Probation
Department (UCPD) shall first consider the criteria set
forth under 61 Pa.C.S.A. 4503. If the offender meets these
eligibility requirements the court shall, when imposing
sentence, designate the offender as being eligible for
formal reentry. Additionally, the sentencing authority
shall order the offender to successfully participate in any
and all mandated treatment or programming as directed
by the UCPD. Any failure to do so will result in the
offender’s eligibility to participate in formal reentry being
revoked as herein described. (Appendix A)
The general requirements for formal reentry shall
include but may not be limited to the following:
1. The UCPD certified that it has conducted an appropriate assessment of the treatment needs and risks of the
inmate using a standardized assessment tool.
2. The UCPD certified that it developed a program
plan based on the assessment conducted under paragraph
1, that is designed to reduce the risk of recidivism
through the use of Recidivism Risk Reduction Incentive
(RRRI) programs authorized and approved by the Court.
3. The UCPD advised the inmate that he or she is
required to successfully participate in the designated
treatment and/or programs and successfully complete
same.
4. The inmate has successfully participated in all required RRRI programs and, if an appropriate period of
time was available, has successfully completed those
programs.
5. The inmate has maintained a good conduct record
following the imposition of the RRRI minimum sentence.
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6. The reentry plan for the inmate is adequate.
7. Individual conditions and requirements for parole
have been established.
8. The UCPD has certified that the inmate continues to
be an eligible offender.
9. There is no reason to believe that the inmate poses
an unreasonable risk to public safety.
Inmates designated as being eligible to participate in a
formal reentry program shall be considered parole eligible
in accordance with the provisions set forth under 61
Pa.C.S.A. 4505(c) referenced Recidivism Risk Reduction
Incentive (RRRI)-minimum sentence. The RRRI minimum
sentence shall be equal to 3/4th of the minimum sentence
imposed. For purposes of these calculations, partial days
shall be rounded to the nearest whole day.
APPENDIX A
Inmates designated by the Court as being eligible for
formal reentry shall be expected to follow all rules and
regulations imposed by the Warden of the Union County
Jail or his designee, all rules and conditions imposed by
the Union County Probation Department, and all directives from treatment or program providers. Furthermore,
the inmate shall comply with all conditions ordered by
the sentencing authority.
All allegations of misconduct shall be reported and
documented in accordance with the Union County PrisonInmate Disciplinary Procedures Policy. (Appendix B) Acts
of misconduct which potentially could impact on an
inmate’s eligibility for formal reentry shall be reviewed
jointly by Union County Prison staff and the Chief
Probation Officer as set forth in Appendix B. Inmates
found to be in noncompliance shall be sanctioned using
an assignment of points with an accumulation of 5 points
or more disqualifying an inmate from formal reentry
eligibility (Appendix C). An added penalty for accruing 5
or more points shall be that the inmate will be ineligible
for parole for one additional week beyond his or her
minimum sentence for each accrued point. For purposes
of calculation, the minimum sentence shall be the term
imposed by the sentencing authority, not the RRRI minimum.
APPENDIX B
Policy: INMATE DISCIPLINARY PROCEDURES
Policy Number: 95.240
Attachments:
1 CLASS I CHARGES
2 CLASS II CHARGES
3 CLASS II CHARGES
4 MISCONDUCT & DISPOSITION FORMS
Date of Issue: 2-Apr-10
Revision Date: 4-Sep-12
Reviewed Annually: See annual review page
I. Policy
It is the policy of the Union County Prison to operate a
disciplinary process that provides clear notice of prohibited behavior, outlines a fundamentally fair hearing process, and establishes consistent sanctions for violations of
Prison rules and regulations. It is also the policy of the
Prison that information concerning an inmate’s criminal
acts shall be forwarded to appropriate court or law
enforcement officials for consideration for prosecution.
II. Procedures
Every inmate under the jurisdiction of the Prison is
expected to follow Prison rules and regulations. In the
557
event that an inmate violates Prison rules and regulations, the violation shall be reported and disposed of
either by an informal or formal resolution process. The
informal resolution process shall be used for those violations that are considered less serious in nature, while the
formal resolution process shall be used for violations of a
more serious nature. Attachment A provides a list of
misconduct that may result in the commencement of
disciplinary procedures. Only Class II and Class III
charges are subject to informal resolution by the Lieutenant and Prison Supervisor. Class I charges must be
disposed of formally by the Lieutenant and Prison Supervisor.
A. Misconduct Reports
1 Every misconduct is to be reported on a Misconduct
Report. An inmate charged with any of the listed misconduct will receive a copy of the report.
2 The Misconduct Report is used to give notice to the
inmate of the misconduct with which he/she has been
charged and to report the facts upon which the charges
are based. The Report will be used as evidence against
the inmate during the misconduct hearing or the informal
resolution meeting.
3 The Misconduct Report shall be written by either the
charging staff member or contract personnel who has
personal knowledge of the misconduct or by a staff
member at the direction of a person who has personal
knowledge of the misconduct.
4 The Misconduct Report will be written and submitted
to the Lieutenant, Prison Supervisor or OIC before the
tour of duty concludes on the same day/shift that the
charging staff member or contract personnel have knowledge of the violation. If not, the Report must include a
justification for the delay.
5 The Misconduct Report shall be investigated as required, reviewed and approved by the Lieutenant or
Prison Supervisor prior to service of the Misconduct
Report on the inmate. The Lieutenant or Prison Supervisor, as an alternative to approving the Misconduct Report,
may refer the matter for informal resolution under this
Policy.
6 The Lieutenant will enter all pertinent information
regarding the misconduct into the Department misconduct tracking system.
B. Service of Misconduct Report
1 The inmate shall be personally served with the
Misconduct Report the same day the report is written. If
the Misconduct Report is not served the same day the
report is written, the Lieutenant or Prison Supervisor
must determine why the Report was not served and
supply justification.
2 Someone other than the charging staff member will
serve the Misconduct Report.
3 The staff member who serves the Misconduct Report
shall record the date and time of service on the Misconduct Report immediately prior to giving the inmate a copy
of the Misconduct Report.
C. Informal Resolution of Misconduct
1 The misconduct charge(s) eligible for informal resolution are:
a. all Class II charges and;
b. all Class III charges
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THE COURTS
2 The Lieutenant and Prison Supervisor will review all
eligible Misconduct Reports for informal resolution. The
staff member issuing the misconduct may recommend
informal resolution for eligible charges, but the Lieutenant and Prison Supervisor, who will base his/her choice
on the relative seriousness of the misconduct and the
inmate’s previous misconduct history, shall make the
decision. The Lieutenant and Prison Supervisor must
justify the reason why an eligible charge was not referred
for informal resolution under the immediate action section of the Misconduct Report. All misconducts selected
for informal resolution will be logged.
4 The inmate shall be informed of the time of the
hearing 24 hours in advance of the scheduled misconduct
hearing.
3 The Lieutenant and Prison Supervisor will meet with
the inmate for disposition of the misconduct charge(s)
within seven working days. The reporting staff member is
encouraged, but not required, to attend the meeting. No
assistance or witnesses are permitted at these meetings.
The inmate will be permitted to give his/her version of
the events at the meeting.
7 Inmate Assistance—
a. In cases when it is apparent that an inmate is not
capable of collecting and presenting evidence effectively
on his/her own behalf, assistance shall be permitted. The
criterion for capability is the inability of the inmate to
understand the English language or the inability to read
or understand the misconduct charge(s) and/or the evidence.
b. The Lieutenant and Prison Supervisor will approve/
disapprove requests for an inmate to have assistance at
the hearing.
c. If approved by the Lieutenant and Prison Supervisor,
the inmate shall be permitted assistance at the hearing
from any staff member or any inmate in the same
population status.
d. The inmate shall be permitted to meet with the
assistant for an appropriate period of time before the
hearing.
8 At the hearing, the misconduct charge(s) shall be
read to the inmate. The Lieutenant or Prison Supervisor
shall request the inmate’s plea to each individual charge.
9 Inmate Version—The inmate may submit his/her
version in writing or may orally present his/her version
that shall be summarized as part of the hearing record.
10 Witnesses—
a. The inmate may request to have up to three witnesses or a written statement from witnesses for the
hearing.
4 At the conclusion of the meeting, the Lieutenant and
Prison Supervisor shall take one of the following actions
and note the action taken on a General Report form:
a. no action
b. reprimand and warning;
c. up to seven days cell restriction
d. up to seven days loss of specified privileges (telephone, yard, dayroom, etc.);
e. one week loss of commissary;
f. assignment of additional work duties for which the
inmate shall not be compensated; or
g. assess restitution for damaged or destroyed property
of Union County or another inmate, provided that the
inmate agrees to make restitution. If the inmate refuses
to agree to make restitution, the matter shall be referred
back to the Lieutenant and Prison Supervisor for formal
resolution.
5 When the Lieutenant and Prison Supervisor assess
restitution for damaged or destroyed property of Union
County or another inmate, 50% thereof can be taken from
the current balance of the inmate’s inmate account and
50% thereof in subsequent months until the debt is
satisfied. However, funds shall not be deducted from the
inmate account until such time as an appeal or the time
for an appeal has passed.
6 The copy of the form designated for the inmate is
given to him/her at the conclusion of the meeting. All
other copies of the form are to be disseminated as
indicated on the form.
7 The inmate may appeal the action taken at the
meeting to the Warden, but only in those cases where the
inmate believes that the action is disproportionate to the
misconduct. The inmate has seven days to appeal.
D. Misconduct Hearing
1 A misconduct hearing shall be held for all Class I
misconduct charges and as provided in Section II.C. of
this Policy.
2 The Lieutenant and Prison Supervisor shall conduct
the misconduct hearing.
3 The misconduct hearing shall be scheduled no less
than 24 hours or no more than seven working days,
excluding weekends and County holidays, after service of
the Misconduct Report.
5 The inmate will be present during the misconduct
hearing, unless the inmate waives that right in writing or
refuses to attend.
6 If the charged inmate becomes disruptive at the
hearing or refuses to follow the instructions given by the
Lieutenant or Prison Supervisor, he/she will be removed
and the hearing conducted without the inmate being
present.
b. All witnesses shall be approved by the Lieutenant
and Prison Supervisor.
c. The Lieutenant and Prison Supervisor may approve
the presence of a staff member or witness only if the staff
member or witness has knowledge of the incident, is
present on facility grounds, and only if the testimony is
needed to establish the guilt or innocence of the inmate.
d. Up to three relevant witnesses, who have been
properly requested and approved, may be permitted. One
of the three witnesses may be the staff member who
witnessed the misconduct violation or the charging staff
member.
e. If an inmate witness or assistant becomes disruptive
at the hearing or refuses to follow the instructions given
by the Lieutenant or Prison Supervisor, he/she shall be
removed and the hearing conducted without the witness
or assistant being present.
f. The Lieutenant or Prison Supervisor may question
any witness. The charged inmate shall be permitted a
reasonable opportunity to pose relevant questions to any
adverse witness. The Lieutenant and Prison Supervisor
shall control the extent of questioning.
g. The Lieutenant and Prison Supervisor shall make
determinations of credibility of a witness.
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h. All testimony shall be under oath.
i. If the inmate elects to plead guilty or waive his/her
right to a hearing, no witnesses shall be required.
11 Designee—In the event the Lieutenant or Prison
Supervisor is involved in the misconduct directly, the
Warden will assign another staff member to replace the
Lieutenant or Prison Supervisor at the hearing.
12 Any discipline shall be recorded and made part of
the inmate’s permanent record.
13 At the conclusion of the hearing, the Lieutenant and
Prison Supervisor shall impose punishment as follows:
a. Loss of privileges, being those actions described in
Section II.C.4 of this Policy; or
b. Segregation
14 Conditions in Segregation shall be as follows, except
if safety or security is a concern:
a. The cell will be clean, well lighted, heated, ventilated and sanitary;
b. The cell shall be furnished with a mattress, bedding
and toilet facilities;
c. Except in special circumstances, as for example a
suspected suicide threat, the inmate shall wear prison
issued clothing;
d. Three meals per day shall be provided, identical
with the meals provided to the remainder of the jail
population;
e. A bathing and shaving schedule shall be maintained,
including the minimum twice weekly opportunities;
f. Toilet tissue and drinking water shall be provided;
g. The inmate shall have an opportunity to exercise;
h. The regular review of segregation shall be practiced,
provided that the time interval shall not exceed five (5)
days;
i. The segregation unit shall be adequately supervised;
j. Writing privileges shall not be denied to inmates in
segregation;
k. The chaplain shall be permitted to visit regularly;
and
l. The medical staff shall visit all inmates in segregation on his/her regularly scheduled visit to the prison.
m. When an inmate in disciplinary status and is
deprived of any usual authorized items or activity a
report of action is made to the prison administrator.
n. Inmates in disciplinary status are given the same
meals served to the general population.
15 Corporal punishment, punishment by placing in a
dark cell, and all cruel, inhumane or degrading punishments shall be completely prohibited.
APPENDIX C
Class 1 Misconduct Charges
Assignment of five points and immediate disqualification from formal reentry eligibility—
1. Commission of any act which results in the filing of
felony or misdemeanor criminal charges.
2. Failure to return to the Union County Prison following an authorized release for purposes of employment or
programming.
559
3. Inmate determined to be at a location other than
that which was authorized as a condition of partial
confinement.
4. Engaging in sexual acts with others or sodomy.
5. Assault against correctional staff.
6. Refusing to work or attend mandatory programs or
encouraging others to do the same.
7. Possession of contraband including but not limited to
tobacco, drug paraphernalia, any illicit or mind altering
substance, alcohol, weapons or other items, which in the
hands of an inmate, present a threat to the inmate,
others, or to the security of the facility.
Class 2 Misconduct Charges
Assignment of two points—
1. Tattooing or other forms of self-mutilation.
2. Possessing tattooing instruments or materials.
3. Gambling or conducting a gambling operation or
possessing gambling paraphernalia.
4. Extortion or blackmail.
5. Possessing or circulating a petition which is a
document signed by two or more person’s requesting or
demanding that something happen or not happen without
the authorization of the Warden.
6. Using abusive, obscene, or inappropriate language
toward correctional or probation staff.
7. Violating the Union County Prison visitation regulations and/or policies.
8. Unauthorized use of mail or telephone including use
of cell phone.
9. Refusing to obey an order from correctional or
probation staff.
10. Theft of property from another inmate.
Class 3 Misconduct Charges
Assignment of one point—
1. Loaning or borrowing property from other inmates.
2. Lying to correctional or probation staff.
3. Failing to report the presence of contraband.
4. Body punching or horseplay.
5. Taking food from the food cart without authorization.
6. Possessing any item not authorized for retention or
receipt by an inmate, not specifically enumerated as a
Class 1 or 2 Misconduct Charge.
7. Any violation of a rule or regulation in the Union
County Department of Corrections Inmate Handbook not
specified as a Class 1 or 2 Misconduct Charge.
[Pa.B. Doc. No. 15-154. Filed for public inspection January 30, 2015, 9:00 a.m.]
PENNSYLVANIA BULLETIN, VOL. 45, NO. 5, JANUARY 31, 2015